The WSJreports on Judge Sotomayor's embrace of legal realism and the work of Jerome Frank.

UPDATE: The speech in question was published as "Returning Majesty to the Law and Politics: A Modern Approach" (with Nicole Gordon), 30 Suffolk U.L. Rev. 35 (1996) [and is available in PDF here]. Ed Whelan also comments on the speech here.

I'm always stunned by how muddled reporting on the law is. Check out this passage:

Confidence in the legal system falters, she said, because the public "expects the law to be static and predictable" when in fact courts and lawyers are "constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions."

That view runs counter to the originalism propounded by conservatives such as Supreme Court Justice Antonin Scalia, which seeks to apply the Constitution the same way 18th-century Americans would have understood it.

How does Sotomayor's view that courts and lawyers are constantly adapting the law to ever-changing conditions run counter to Scalia's originalism, which seeks, the reporter's word, to interpret the Constitution the way Americans in 1787 would have understood it? Does the reporter not understand the difference between description and prescription? Later in the article some of the quotes from Sotomayor's speech seem to suggest that she endorses such adaptation, but merely observing that courts do adapt the law to changing conditions doesn't run counter to originalism, which is a theory of what courts should do, not a descriptive theory of what they are doing. Aside from that, I'd need to read the speech to know whether Sotomayor is endorsing Frankian legal realism or just saying the obvious, that Frank's legal realism is a good model of what courts actually do.

I'm curious about the facts in the case in which a state supreme court voted 3-2 "to grant a protective order against a father's visitation rights.
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As for the article sending an unclear message, my takeaway, based on it's sum total (and despite ambiguity when carefully deconstructed) is that Sodomayor favors the approach of legal realism, and empowering judges to adapt the law to the case at hand. This may well result in similarly situated litigants obtaining differing results under the law. I think she wishes people would have confidence in a system of this nature, because she finds that is what the court system should be and is.

This may be helpful to those interested in looking at source material, a cite from Ed Whelen/Benchmemos: In 1996, Judge Sonia Sotomayor delivered a speech to law students that she then turned into a law-review article (which she co-authored with Nicole A. Gordon), "Returning Majesty to the Law and Politics: A Modern Approach" (30 Suffolk U.L. Rev. 35 (1996))
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Note that I am not referring to Whelen's piece itself as source material.

To the degree that a 13 year-old writing can illuminate a nominee's inner feelings, this is a fascinating speech, illustrative of much more than the application of laws to facts in a particular opinion. Perhaps more than other writings, this is an explanation of Sotomayor's understanding of, belief in, and interest in changing the law.

The most striking thing about the article is that it is poorly-written. It is certainly taken from a speech, but a plodding, cliche-ridden graduation-type speech. There's not a high note in it. It has no cadence, no absorbable organization, and an complicated, multi-step analysis leading to no ringing conclusion. This is not the work of an intellectual leader. This appears to be the work of the type of "brilliant" lawyer who becomes a backroom workhorse in a big firm. Perhaps a tax attorney.

The second most striking thing about the article is the description of the role of lawyers -- as instruments of change. This is attorney as lawmaker. It is the lawyer's job to ride against evil, to redress grievances, to right wrongs. Lawyers who do not do so, and rules which inhibit their doing so, are somehow deficient and must be remedied. While a common view, and in fact the inspiration for many to go into the law, this is also an interesting example of a particular worldview. If the role of the Supreme Court is to "protect the harbor," as was once told to me, this is a contrary view which says "let's dredge the harbor" instead. This is, more than anything I've seen, an indication that Sotomayor will be an activist on the bench, even if her prior opinions did not show this.

In short, this appears to be the kind of speech which could have been given by Stephen Reinhardt, if he were deprived of his ability to write well. Not determinative of Sotomayor, since it was co-written, but also not a promising sign.

So now we get the real basis of opposition to Sotomayor -- she's BORING. Like many judges, she gave in to the temptation to deliver to a captive audience a piece of high-sounding bafflegab with not an original or interesting, let alone controversial, thought in it. If they're going to give you lunch, tradition requires that you speak -- and it usually requires as well that you when you speak you not say anything. Like so many of her peers, Sotomayor is -- gasp! -- a traditionalist.

It is certainly taken from a speech, but a plodding, cliche-ridden graduation-type speech. There's not a high note in it.

Having gone to a few of these "lecture series"-type speeches given by federal judges while I was at Virginia, I feel pretty comfortable saying that this fits the norm. The only worthwhile one I attended was a talk by Judge McConnell on the historical background surrounding the adoption of the Establishment and Free Exercise Clauses. The other five or six speeches like this I saw were the same old "not much sound or fury signifying not much of anything." Sotomayor doesn't look bad on this scale, just normal.

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